August 16, 2011

D.C. Circuit Upholds Sex-Offender Registry

A federal appeals panel in Washington today rejected an argument that the District of Columbia's sex-offender registry is an unconstitutional example of ex post facto punishment.

The challenge to the registry was brought by Grant Anderson, who according to the panel's opinion is required to register as a sex offender for the rest of his life. A jury convicted Anderson in 1988 of attempted rape and other charges. While he was serving his sentence, the D.C. Council in 2000 passed its Sex Offender Registration Act.

Anderson brought the case pro se. U.S. District Judge Richard Roberts granted motions by the District government and the U.S. Justice Department to dismiss the case. On appeal, the U.S. Court of Appeals for the D.C. Circuit appointed a student and professor from the University of Georgia School of Law to argue for Anderson as amicus.

The decision today from a three-judge panel of the D.C. Circuit says the D.C. registry should be viewed as a civil system of regulation and not as an additional criminal penalty. The opinion notes, for example, that the registry is housed in an administrative agency, not in a court office or in an agency charged with carrying out punishment.

“We see no reason to think that the Council’s aim with [the registration act] was different from that of the many other legislatures that have passed similar laws,” Judge Thomas Griffith wrote for the unanimous panel. Judges Merrick Garland and Karen Henderson joined the opinion (PDF).

Griffith wrote that Anderson failed to support his other claims, including violations of the Fifth and Eighth amendments.

Ariel Levinson-Waldman, senior counsel to D.C. Attorney General Irvin Nathan, wrote in an e-mail today: “We are pleased that the court of appeals confirmed the constitutional validity of the Council’s regulatory law dealing with this important issue.”

A message left with Erica Hashimoto, a University of Georgia associate professor who handled amicus briefing in the case, was not immediately returned today.

Comments

Of course the registration laws are a purely administrative function of government, the same way that the Nuremberg Laws were just an administrative function. The fact that the consequences are completely punitive are not of interest to the courts. I would challenge any of the judges who feel that way to get his name on a registry, try to find a job and a place to live, and then come back after a few months and tell us he still thinks it's not punishment.

I read of an incident a few years ago where a 13 year old boy (legally too young to consent to sex under any circumstances, in that state) forcibly raped a 14 year old girl (old enough to conditionally consent, via a close-in-age exemption).

But since a 13 year old cannot ever consent to sex, according to state law, they also cannot commit rape, since rape requires intent on the part of the rapist, as well as one-sided consent. Charges were filed against the victim, for what amounts to statutory rape (it is established fact that sex occurred between her and someone too young to consent).

Last I heard about the case, the prosecutor saw nothing wrong with charging the victim of forcible rape with a sex crime (even going so far as to offer the rapist immunity in exchange for testimony in the statutory rape case against the victim). If the girl is convicted, she will have to register as a juvenile sex offender; "Luckily" for her, that registration is expunged when she turns 18. But if the prosecutor had charged her as an adult, she would be (if convicted that way) required to register for life, due to the "victim" being only a child.

Please, please, don't automatically do this to people. Many one-time offenders used bad judgement or/and are serving, already, long and excessive sentences and don't deserve to go to their graves with this label.